The Supreme Court/The Supreme Court.iso/pc/ascii/misc/2rulesd.za

Text File | 1993-04-22 | 8.5 KB | 172 lines

SUPREME COURT OF THE UNITED STATES
AMENDMENTS TO THE FEDERAL RULES
OF CIVIL PROCEDURE
[April 22, 1993]

  Statement of Justice White.  28 U. S. C. 2072
empowers the Supreme Court to prescribe general rules
of practice and procedure and rules of evidence for cases
in the federal courts, including proceedings before
magistrates and courts of appeals.  But the Court does
not itself draft and initially propose these rules.  Section
2073 directs the Judicial Conference to prescribe the
procedures for proposing the rules mentioned in 2072.
The Conference is authorized to appoint committees to
propose such rules.  These rules advisory committees are
to be made up of members of the professional bar and
trial and appellate judges.  The Conference is also to
appoint a standing committee on rules of practice and
evidence to review the recommendations of the advisory
committees and to recommend to the Conference such
rules and amendments to those rules -as may be
necessary to maintain consistency and otherwise promote
the interest of justice.-  2073(b).  Any rules approved by
the Conference are transmitted to the Supreme Court,
which in turn transmits any rules -prescribed- pursuant
to 2072 to the Congress.  Except as provided in
2074(b), such rules become effective at a specified time
unless Congress otherwise provides.
  The members of the advisory and standing committees
are carefully named by The Chief Justice, and I am

quite sure that these experienced judges and lawyers take
their work very seriously.  It is also quite evident that
neither the standing committee nor the Judicial
Conference merely rubber stamps the proposals
recommended to it.  It is not at all rare that advisory
committee proposals are returned to the originating
committee for further study.
  During my 31 years on the Court, the number of
advisory committees has grown as necessitated by
statutory changes.  During that time, by my count at
least, on some 64 occasions we have -prescribed- and
transmitted to Congress a new set of rules or amendments
to certain rules.  Some of the transmissions have been
minor, but many of them have been extensive.  Over this
time, Justices Black and Douglas, either together or sepa-
rately, dissented 13 times on the ground that it was
inappropriate for the Court to pass on the merits of the
rules before it.  Aside from those two Justices, Justices
Powell, Stewart and then-Justice Rehnquist dissented on
one occasion and Justice O'Connor on another as to the
substance of proposed rules.  446 U. S. 995, 997 (1980)
(Powell, J., dissenting); 461 U. S. 1117, 1119 (1983)
(O'Connor, J., dissenting).  Only once in my memory did
the Court refuse to transmit some of the rule changes
proposed by the Judicial Conference.  500 U. S. ___
(1991).
  That the Justices have hardly ever refused to transmit
the rules submitted by the Judicial Conference and the
fact that, aside from Justices Black and Douglas, it has
been quite rare for any Justice to dissent from
transmitting any such rule, suggest that a sizable majority
of the 21 Justices who sat during this period concluded
that Congress intended them to have a rather limited role
in the rulemaking process.  The vast majority (including
myself) obviously have not explicitly subscribed to the
Black-Douglas view that many of the rules proposed dealt
with substantive matters that the Constitution reserved
to Congress and that in any event were prohibited by
2072's injunction against abridging, enlarging or
modifying substantive rights.
  Some of us, however, have silently shared Justice
Black's and Justice Douglas' suggestion that the enabling
statutes be amended
-to place the responsibility upon the Judicial Con-
ference rather than upon this Court.  Since the stat-
ute was first enacted in 1934, 48 Stat. 1064, the
Judicial Conference has been enlarged and improved
and is now very active in its surveillance of the work
of the federal courts and in recommending appropriate
legislation to Congress.  The present rules produced
under 28 U. S. C. 2072 are not prepared by us but
by Committees of the Judicial Conference designated
by The Chief Justice, and before coming to us they
are approved by the Judicial Conference pursuant to
28 U. S. C. 331.  The Committees and the
Conference are composed of able and distinguished
members and they render a high public service.  It
is they, however, who do the work, not we, and the
rules have only our imprimatur.  The only
contribution that we actually make is an occasional
exercise of a veto power.  If the rule-making for
Federal District Courts is to continue under the
present plan, we believe that the Supreme Court
should not have any part in the task; rather, the
statute should be amended to substitute the Judicial
Conference.  The Judicial Conference can participate
more actively in fashioning the rules and affirmatively
contribute to their content and design better than we
can.  Transfer of the function to the Judicial Confer-
ence would relieve us of the embarrassment of having
to sit in judgment on the constitutionality of rules
which we have approved and which as applied in
given situations might have to be declared invalid.-
374 U. S. 865, 869-870 (1963) (footnote omitted).
  Despite the repeated protestations of both or one of
those Justices, Congress did not eliminate our
participation in the rulemaking process.  Indeed, our
statutory role was continued as the coverage of 2072 was
extended to the rules of evidence and to proceedings
before magistrates.  Congress clearly continued to direct
us to -prescribe- specified rules.  But most of us concluded
that for at least two reasons Congress could not have
intended us to provide another layer of review equivalent
to that of the standing committee and the Judicial
Conference.  First, to perform such a function would take
an inordinate amount of time, the expenditure of which
would be inconsistent with the demands of a growing
caseload.  Second, some us, and I remain of this view,
were quite sure that the Judicial Conference and its
committees, -being in large part judges of the lower courts
and attorneys who are using the Rules day in and day
out, are in a far better position to make a practical
judgment upon their utility or inutility than we.-  383
U. S. 1089, 1090 (1966) (Douglas, J., dissenting).
  I did my share of litigating when in practice and once
served on the Advisory Committee for the Civil Rules, but
the trial practice is a dynamic profession, and the longer
one is away from it the less likely it is that he or she
should presume to second-guess the careful work of the
active professionals manning the rulemaking committees,
work that the Judicial Conference has approved.  At the
very least, we should not perform a de novo review and
should defer to the Judicial Conference and its committees

as long as they have some rational basis for their
proposed amendments.
  Hence,  as I have seen the Court's role over the years,
it is to transmit the Judicial Conference's rec-
ommendations without change and without careful study,
as long as there is no suggestion that the committee
system has not operated with integrity.  If it has not,
such a fact, or even such a claim, about a body so open
to public inspection would inevitably surface.  This has
been my practice, even though on several occasions, based
perhaps on out-of-date conceptions, I had serious questions
about the wisdom of particular proposals to amend certain
rules.
  In connection with the proposed rule changes now before
us, there is no suggestion that the rulemaking process has
failed to function properly.  No doubt the proposed
changes do not please everyone, as letters I have received
indicate.  But I assume that such opposing views have
been before the committees and have been rejected on the
merits.  That is enough for me.
  Justice Douglas thought that the Court should be taken
out of the rulemaking process entirely, but as long as
Congress insisted on our -prescribing- rules, he refused
to be a mere conduit and would dissent to forwarding rule
changes with which he disagreed.  I note that Justice
Scalia seems to follow that example.  But I also note that
as time went on, Justice Douglas confessed to insufficient
familiarity with the context in which new rules would
operate to pass judgment on their merits.
  In conclusion, I suggest that it would be a mistake for
the bench, the bar, or the Congress to assume that we are
duplicating the function performed by the standing
committee or the Judicial Conference with respect to
changes in the various rules which come to us for
transmittal.  As I have said, over the years our role has
been a much more limited one.